Motion to Compel – Page 136 – Electronic Discovery Law

Excelligence Learning Corp. v. Oriental Trading Co., 2004 WL 2452834 (N.D. Cal. June 14, 2004)

Dec 01 2004

Key Insight: Court granted defendant’s motion to compel production where defendant agreed to limit scope of email request; further, court rejected defendant’s undue burden objection to plaintiff’s discovery requests where defense counsel argued that retrieval of responsive information would be time-consuming because it involved cross-referencing many databases and backup tapes, but did not submit the information in the form of a declaration

Nature of Case: Trademark infringement, misappropriation of trade secrets and related torts

Electronic Data Involved: Email; vendor information relating to 278 products

Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)

Dec 01 2004

Key Insight: Granting motion to compel defendant to produce email from backup tapes notwithstanding fact that restoration and retrieval costs may approach $100,000, court stated: “Upon installing a data storage system, it must be assumed that at some point in the future one may need to retrieve the information previously stored. That there may be deficiencies in the retrieval system (or inconvenience and cost associated with the actual retrieval) cannot be sufficient to defeat an otherwise good faith request to examine relevant information . . .”

Nature of Case: Valuation dispute arising as result of two merger agreements

Electronic Data Involved: Email stored on monthly backup tapes

Nicholas v. Windham Int’l, Inc., 373 F.3d 537 (4th Cir. 2004)

Dec 01 2004

Key Insight: No abuse of discretion to deny enforcement of subpoena directed to plaintiffs’ nonparty company where defendants had already deposed plaintiffs and conceded that the company would have no additional information, plaintiffs would be designated Rule 30(b)(6) witnesses if discovery were allowed, and plaintiffs had already produced email from their business accounts and remained under a continuing obligation to supplement their earlier productions

Nature of Case: Ancillary proceeding to enforce subpoena

Electronic Data Involved: Email

State v. Cartwright, 336 Or. 408, 85 P.3d 305 (2004)

Dec 01 2004

Key Insight: Concluding that defendant had a right to obtain audiotaped prior statements of witnesses for use in cross-examining the individuals whose statements were on the tapes, court noted in footnote: “The audiotapes at issue here are the functional equivalent of written statements. It would be a towering triumph of form over substance to hold that [defendant’s former employer’s] choice of an electronic, rather than a documentary, mode of preserving the witness’ statements puts the statements beyond the reach of a subpoena duces tecum.”

Nature of Case: Criminal sexual harassment

Electronic Data Involved: Audiotapes of witness’ statements made by defendant’s former employer

Zonaras v. Gen. Motors Corp., 1996 WL 1671236 (S.D. Ohio Oct. 17, 1996)

Dec 01 2004

Key Insight: Defendant ordered to produce crash test data, but plaintiff to share in cost

Nature of Case: Product liability

Electronic Data Involved: Crash test data

Bowles v. Nat’l Ass’n of Home Builders, 2004 WL 2203831 (D.D.C. Sept. 30, 2004)

Dec 01 2004

Key Insight: Court ruled that defendant effected waiver of its attorney-client and work product privileges as to all documents on the same subject matter as the privileged documents it gave to plaintiff when she was president, since defendant’s failure to take any legal action to assert its privilege or otherwise to recover the documents for more than a year did not constitute “reasonable steps to reclaim the protected material.” Parties ordered to submit further briefing on the scope of the subject matter waiver.

Nature of Case: Former president of association sued for wrongful termination

Electronic Data Involved: Privileged emails

Farmers Ins. Co., Inc. v. Peterson, 81 P.3d 659 (Okl. 2003)

Dec 01 2004

Key Insight: Writ of prohibition issued, vacating lower court’s order requiring defendant to search all of its electronic and hard copy claim files covering three-year period; court suggested alternate approach using statistical sampling technique, but left the particulars of such sampling to parties to litigate in lower court

Nature of Case: Insurance bad faith

Electronic Data Involved: Electronic claim files covering three-year period

Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)

Dec 01 2004

Key Insight: Emails exchanged between a narrow group of plaintiff corporate business’s non-attorney employees were protected from discovery by attorney-client privilege and work product doctrine; further, statements on plaintiff’s web site waived work product protection for affidavits described therein, but did not waive work product protection with respect to plaintiff’s recorded conversation with competitor’s former employees and email exchanges with them

Nature of Case: Copyright infringement and misappropriation of trade secrets

Electronic Data Involved: Email

OpenTV v. Liberate Tech., 219 F.R.D. 474 (N.D. Cal. 2003)

Dec 01 2004

Key Insight: Applying Zubulake balancing test, court ordered parties to share equally the cost of extracting source code from defendant’s database; however, defendant solely to bear cost of copying source code for production once it is extracted

Nature of Case: Infringement action

Electronic Data Involved: Source code

Times Publ’g Co. v. City of Clearwater, 830 So.2d 844 (Fla. Dist. Ct. App. 2002)

Dec 01 2004

Key Insight: Email stored in government computers does not automatically become public records by virtue of that storage; private or personal email fell outside the statutory definition of “public records”

Nature of Case: Newspaper sued city to release as public record all email sent from or received by two city employees

Electronic Data Involved: Email

Tag:Motion to Compel